Public Knowledge has blogged about this tonight.

I had the privilege of speaking with Sherin Siy earlier today and I appreciate Sherwin Siy’s point of view and his critique of both the situation as we understand it, and of my take on the situation.

I tend to agree with the paraphrasing of Lawrence Lessig that it doesn’t make sense to press copyright too far or all the time when it comes to political speech. But, as it was also noted, my particular photo is not essential to the “dialogue” happening here. It doesn’t make sense to abuse the terms that I’ve willingly shared this work under. And I feel I’ve been deprived of the reserved right to grant permission under other terms to use it further than the chosen Creative Commons terms allow.

I am trying to practice my belief in a “tool” that actually factilates sharing, that strikes a balance so that political speech and other dialogue can benefit from shared culture, from reuse and remixing and inherently maybe even be more constructive when the rules of the Commons are followed. I am trying to strike a balance between that and developing and sustaining my photography.

As I inspect my images closer, and the ads, it appears they may be using one or a couple similar images of mine taken from the same vantage point at about the same time. But that they are my images, unique to this event, remains clear – the angle of the photo, the angle of light, the apparent focal length, the basic nature of the exposure, the matching of key features of the expression, is all consistent with this event and my unique point of view.

The photo is one of several I took of Murtha in profile at a town hall in Virginia in 2006, listening to the public talk about the Iraq war and the Bush Administration. The scene was a packed room, full of people with 9/11 memorial t-shirts, American flags, comprising of local constituents that included veterans and Defense Department employees. There were peace activist veterans and veteran peace activists alike. Murtha’s scrunched facial expression as depicted in my photo is one of concentration and attentiveness (something you might derive from seeing the whole set and knowing about the event). In the ad it is reduced to a context-less scowl coupled with something else entirely.

I share many photos on Flickr under Creative Commons licenses and this photo is one of those. The Creative Commons is a way of using copyright to share material while retaining rights as one sees fit. It is a philosophy for using copyright constructively.

The license I chose was the “Attribution-Noncommercial-No Derivative Works 2.0 Generic” license, and the conditions are boiled down to the following points:

• Provide attribution
• No commercial use
• No derivative works
• And, of course, make clear the terms under which the CC-licensed work being used is available to others as well.

It seems obvious to me that the Russell campaign’s production people didn’t give proper attribution in the video or elsewhere, nor did they make the terms of the license clear in redistributing my work. They’ve manipulated the background of the photo further taking it out of context, which I believe constitutes a derivative work, and while this isn’t commercial speech, they did use the ad as fodder for fundraising. Depending on how the ad was created and the relationship between the producers and the campaign, I kind of wonder if the “commercial use” restriction wasn’t still violated (but that is speculation).

I don’t like the implication that I gave the Russell campaign permission beyond the limitations of the license I gave to the public. I’m trying, whenever I feel it appropriate, to share my photos with the commons to support the kind of substantive media and dialogue I believe in (even if I disagree with a given argument) and I am trying to be able to do more media making. Inappropriate use of my work undermines this.

This morning I woke to see, upon closer inspection of the web site, that my image is being used in other promotional content on the campaign site and in another spot, “The King of Pork” ad.

I didn’t react publicly right away last night because I reached out to friends who know lawyers and to Public Knowledge for advice first. I got the beginnings of advice this morning. I’ve written Russell’s campaign to ask them to stop using my work beyond the bounds of the Creative Commons license and I’m interested in finding out what more I can do.

I feel like I should say I am also all for fair use (an implied right that long precedes the Creative Commons) but I don’t think this fits. Others have agreed.

I don’t know yet if they’ve run these ads on TV, but they appear to want to and they have gotten a sizable enough views on YouTube for a congressional race.

I would hope that when Creative Commons works are used properly in any kind of speech the public would understand such use is not the same as endorsement by the original creator. By not following the rules of the Creative Commons license, Russell’s ad leaves people to reasonably conclude an endorsement by me if they happen to recognize the photo or find it elsewhere, properly attributed. Ben’s message to me last night was an example of such an inference – that I had somehow collaborated with this campaign – being drawn by a complete stranger.

I could imagine Creative Commons-supplied works figuring into constructive mainstream political volleys some day. Where dynamic and well-attributed and linked remixed works themselves could be maps to the nuance and reality of the political scene, via which deceit and inaccuracies could be routed out by tracing the component parts of these works.

This misuse is an example of diminishing the productive uses of copyright, of the commons and I find this a threat to democracy (however important this small example is or is not). The consequences of stomping across the commons could become quite significant if people become afraid to share their work, particularly if like much of mine it is documentary in nature, because they’re afraid it will be unattributed, taken out of context, or worse.

By documenting this publicly, I’m not implicitly defending the comments by Murtha that the first ad is ostensibly criticizing. I personally have fundamental disagreements with Murtha’s hawkishness, nevermind the pork end of his role in defense spending. To be frank, I doubt I agree with much of Murtha’s or Russell’s stated positions or their track records overall.